Desrosiers v. Diageo North America, Inc. ( 2014 )

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MIREILLE DESROSIERS v. DIAGEO NORTH
AMERICA, INC., ET AL.
(SC 19039)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Vertefeuille, Js.
Argued January 15—officially released December 16, 2014
John T. Bochanis, for the appellant (plaintiff).
Kenneth W. Gage, with whom, on the brief, was Erin
E. LaRuffa, for the appellee (named defendant).
Charles Krich, principal attorney, filed a brief for the
Commission on Human Rights and Opportunities as
amicus curiae.
Michael J. Soltis and Justin E. Theriault filed a brief
for the Connecticut Business Industry Association, Inc.,
as amicus curiae.
Opinion
ESPINOSA, J. Under the Connecticut Fair Employ-
ment Practices Act (act), General Statutes § 46a-51 et
seq., employers may not discriminate against certain
protected classes of individuals, including those who
are physically disabled. The sole issue in this appeal is
whether the act also prohibits employers from discrimi-
nating against individuals whom they perceive to be
physically disabled. The plaintiff, Mireille Desrosiers,
claims that the Appellate Court improperly affirmed the
trial court’s partial summary judgment rendered in favor
of the defendants Diageo North America, Inc. (Diageo),
and Lawrence D. Levine,1 her employer and manager,
respectively, on the ground that ‘‘ ‘a cause of action
based on a perceived [physical] disability is not a legally
recognized action in Connecticut.’ ’’ Desrosiers v. Dia-
geo North America, Inc., 137 Conn. App. 446, 451, 49
A.3d 233 (2012). The plaintiff contends that although
the express terms of General Statutes § 46a-60 (a) (1)2
protect only individuals who have a physical disability,
the legislative history of the act, considered in conjunc-
tion with Connecticut case law and the interpretation
of the act by the Commission on Human Rights and
Opportunities (commission), compels the conclusion
that § 46a-60 (a) (1) also protects individuals who are
regarded by their employers as having a physical disabil-
ity. We agree with the plaintiff and reverse in part the
judgment of the Appellate Court.
The relevant facts and procedural history are set forth
in the Appellate Court’s opinion. ‘‘Diageo is a producer
of alcoholic beers, wines and spirits. The plaintiff began
working for Diageo in 1993. [After] Diageo merged with
another alcoholic beverages company . . . the plain-
tiff’s position was eliminated, however, Levine allowed
the plaintiff to serve in the position of a value added
packaging buyer.3
‘‘Diageo had a formal performance evaluation pro-
gram in place in which an employee could receive a
ranking of below expectations, satisfactory, fully meets
expectations or exceeds expectations. In February,
2004, the plaintiff was rated as satisfactory. In April,
2004, the plaintiff was still struggling in the new posi-
tion; therefore, Levine drafted a document entitled ‘Mir-
eille’s Key Criteria and Deliverables,’ which listed five
areas where the plaintiff needed to improve. In the
August, 2004 evaluation, Levine rated the plaintiff’s per-
formance as below expectations. In September, 2004,
the plaintiff was evaluated and informed that certain
aspects of her job performance were still inadequate
as she had only met two of her five goals. The plaintiff
thereafter was placed in a ninety day performance
improvement plan prepared for her by Levine. On
November 17, 2004, the plaintiff met with Levine to talk
about her progress. According to the plaintiff’s affidavit,
Levine informed her that her progress was satisfactory,
she was no longer in need of the performance improve-
ment plan and she no longer had to worry about the
criteria stated in the document delivered to her in Sep-
tember, 2004.
‘‘The plaintiff took vacation time from December 21,
2004 through January 4, 2005. When the plaintiff
returned to work on January 4, 2005, she informed
Levine that she would need to take time off from work
to undergo surgery for a tumor on her right shoulder.
On January 5, 2005, Levine informed the plaintiff that
her employment was terminated. The defendants’
stated reason for terminating her employment was that
her performance had not sufficiently improved.
‘‘The plaintiff’s amended complaint sets forth five
counts against the defendants. The first three counts
alleged disparate treatment discrimination under
[§ 46a-60].4 The third count of the complaint alleged
that the plaintiff was discriminated against on the basis
of her physical disability and/or her perceived disability.
The fourth and fifth counts of the complaint alleged
negligent misrepresentation and promissory estoppel,
respectively.
‘‘On May 3, 2010, the defendants filed a motion for
summary judgment . . . [and] the court granted the
defendants’ motion for summary judgment on counts
one, two, four and five. As to count three, the court
granted the defendants’ motion for summary judgment
to the extent that it alleged a cause of action based on
a perceived physical disability, but denied the motion
as to the allegation of discrimination based on a physical
disability. In its memorandum of decision on the defen-
dants’ motion for summary judgment, the court
expressly determined that ‘a cause of action based on
a perceived disability is not a legally recognized action
in Connecticut.’ A jury trial was held on the remainder
of count three, resulting in a verdict in favor of the
defendants.’’ (Footnotes in original.) Id., 449–51.
The plaintiff appealed to the Appellate Court, claim-
ing that the trial court improperly had rendered sum-
mary judgment in part on count three of the amended
complaint on the basis of its improper conclusion that
Connecticut does not recognize a cause of action for
discrimination on the basis of a perceived physical dis-
ability.5 Id., 452. In order to assess whether individuals
who are perceived to be physically disabled are pro-
tected by the act, and may therefore bring a claim alleg-
ing employment discrimination, the Appellate Court
considered the text of § 46a-60 (a) (1), which prohibits
an employer from discriminating against an individual
on the basis of that individual’s physical disability. After
determining that § 46a-60 (a) (1) is silent as to whether
it prohibits an employer from discriminating against an
individual who is regarded as having a physical disabil-
ity; id., 453; the Appellate Court examined the defini-
tions of ‘‘ ‘[p]hysically disabled’ ’’ and ‘‘ ‘[m]ental
disability’ ’’ in General Statutes § 46a-51 (15) and (20),
respectively.6 The court noted that whereas the defini-
tion of ‘‘ ‘[p]hysically disabled’ ’’ only includes ‘‘any indi-
vidual who has any chronic physical handicap, infirmity
or impairment’’; (emphasis added) General Statutes
§ 46a-51 (15); the definition of ‘‘ ‘[m]ental disability’ ’’
also includes individuals who are ‘‘regarded as having
one or more mental disorders . . . .’’ General Statutes
§ 46a-51 (20); Desrosiers v. Diageo North America, Inc.,
supra, 137 Conn. App. 454–55. Emphasizing that ‘‘the
use of the word ‘has’ by the legislature [in § 46a-51 (15)]
evinces the intent to protect those who actually suffer
from some type of handicap, infirmity or impairment,
not those whose employer may incorrectly regard as
being disabled’’; Desrosiers v. Diageo North America,
Inc., supra, 455; the Appellate Court determined that
‘‘the language clearly demonstrates that it protects
those who are physically disabled, and no language is
used to support an interpretation that it also protects
those who are regarded as physically disabled.’’ Id., 456.
As a result, the Appellate Court concluded that ‘‘the
text of § 46a-60 is clear and unambiguous in that it does
not cover claims of discrimination based on a perceived
physical disability,’’ and rejected the plaintiff’s claim
that the trial court improperly had granted the defen-
dants’ motion for summary judgment as to the count
alleging discrimination on the basis of a perceived phys-
ical disability. Id., 457. We then granted the plaintiff’s
petition for certification to appeal to this court on the
sole issue of whether ‘‘the Appellate Court properly
affirm[ed] the trial court’s granting of summary judg-
ment in favor of the defendant[s] on the basis that
Connecticut does not recognize a cause of action for
discrimination based on a perceived physical disabil-
ity.’’ Desrosiers v. Diageo North America, Inc., 307
Conn. 916, 54 A.3d 180 (2012).
In her appeal to this court, the plaintiff claims that
the Appellate Court improperly affirmed the judgment
of the trial court on the basis of its determination that
§ 46a-60 (a) (1) only protects individuals who are physi-
cally disabled from employment discrimination. The
plaintiff contends that because § 46a-60 (a) (1) is silent
as to whether it also protects individuals who are
regarded as physically disabled, the Appellate Court
should have considered the legislative history of the
act and the decisions of the commission in construing
the statute. According to the plaintiff, these sources
compel the conclusion that § 46a-60 (a) (1) protects
individuals who are regarded as physically disabled
from employment discrimination. The plaintiff further
argues that even if the text of § 46a-60 (a) (1) is plain
and unambiguous, an interpretation that § 46a-60 (a)
(1) protects individuals who are physically disabled
from employment discrimination but does not protect
individuals who are regarded as physically disabled
from employment discrimination, would yield absurd
results. Diageo counters that the clear and unambigu-
ous terms of § 46a-60 (a) (1) do not provide a cause of
action for discrimination premised on perceived physi-
cal disabilities because individuals who are perceived
to be physically disabled are not within the protected
class of physically disabled individuals, and that even
if the language were ambiguous, the trial court’s ruling
is consistent with the legislative history of the act. As
an alternative ground for affirmance, Diageo claims that
the pleadings, affidavits and other proof submitted by
the plaintiff were insufficient to establish an issue of
material fact with respect to whether the defendants
regarded the plaintiff as physically disabled. We con-
clude that § 46a-60 (a) (1) protects individuals who are
perceived to be physically disabled from employment
discrimination and reject Diageo’s alternative ground
for affirming the judgment of the Appellate Court.
Accordingly, we reverse in part the judgment of the
Appellate Court.
The standard of review for a trial court’s ruling on
a motion for summary judgment is well established.
‘‘Summary judgment shall be rendered forthwith if the
pleadings, affidavits and other proof submitted show
that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law. . . . The scope of our appellate review
depends upon the proper characterization of the rulings
made by the trial court. . . . When . . . the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Vendrella v. Astriab Family Ltd. Partnership, 311
Conn. 301, 313, 87 A.3d 546 (2014). In the present case,
the trial court granted in part the motion for summary
judgment on count three of the amended complaint
solely on the basis of its legal determination that Con-
necticut does not recognize a cause of action for dis-
crimination premised on a perceived physical disability.
In other words, while individuals who have a physical
disability are a protected class under the statute, indi-
viduals who are perceived to have a physical disability
do not fall within this group and are not protected by
the statute. Because this legal determination raises an
issue of statutory construction, we engage in plenary
review. Marchesi v. Board of Selectmen, 309 Conn. 608,
620, 72 A.3d 394 (2013).
When presented with a question of statutory con-
struction, ‘‘[o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.’’
(Internal quotation marks omitted.) Manifold v. Ragag-
lia, 272 Conn. 410, 419, 862 A.2d 292 (2004). ‘‘The mean-
ing of a statute shall, in the first instance, be ascertained
from the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. General Stat-
utes § 1-2z.’’ (Internal quotation marks omitted.) Tuxis
Ohr’s Fuel, Inc. v. Administrator, Unemployment
Compensation Act, 309 Conn. 412, 421–22, 72 A.3d 13(2013). When a statute is not plain and unambiguous
or would yield absurd or unworkable results, however,
‘‘we also look for interpretive guidance to the legislative
history and circumstances surrounding its enactment,
to the legislative policy it was designed to implement,
and to its relationship to existing legislation and com-
mon law principles governing the same general subject
matter . . . .’’ (Internal quotation marks omitted.) Id.,
422. Finally, when it becomes necessary to consult addi-
tional sources, ‘‘[w]e traditionally have accorded defer-
ence to the time-tested interpretation of an agency
charged with enforcing the provisions of a statute, pro-
vided that the agency’s interpretation has been formally
articulated and applied for an extended period of time,
and that interpretation is reasonable.’’ (Internal quota-
tion marks omitted.) Curry v. Allan S. Goodman, Inc.,
286 Conn. 390, 404, 944 A.2d 925 (2008). As this court
recently affirmed, ‘‘[d]eference is warranted in such
circumstances because a time-tested interpretation,
like judicial review, provides an opportunity for
aggrieved parties to contest that interpretation. More-
over, in certain circumstances, the legislature’s failure
to make changes to a long-standing agency interpreta-
tion implies its acquiescence to the agency’s construc-
tion of the statute. . . . For these reasons, this court
long has adhered to the principle that when a govern-
mental agency’s time-tested interpretation [of a statute]
is reasonable it should be accorded great weight by
the courts.’’ (Internal quotation marks omitted.) Tuxis
Ohr’s Fuel, Inc. v. Administrator, Unemployment
Compensation Act, supra, 422–23.
In order to determine whether the legislature
intended to protect individuals who are regarded as
physically disabled from employment discrimination,
we look first to the text of § 46a-60, which provides in
relevant part: ‘‘(a) It shall be a discriminatory practice
in violation of this section: (1) For an employer . . .
except in the case of a bona fide occupational qualifica-
tion or need, to refuse to hire or employ or to bar
or to discharge from employment any individual or to
discriminate against such individual in compensation
or in terms, conditions or privileges of employment
because of the individual’s race, color, religious creed,
age, sex, gender identity or expression, marital status,
national origin, ancestry, present or past history of men-
tal disability, intellectual disability, learning disability
or physical disability, including, but not limited to,
blindness . . . .’’
Although § 46a-60 (a) (1) is silent as to whether its
protections extend to individuals who are regarded as
physically disabled, the definitions of ‘‘ ‘[p]hysically dis-
abled’ ’’ in § 46a-51 (15) and ‘‘ ‘[m]ental disability’ ’’ in
§ 46a-51 (20), are instructive. See General Statutes § 1-
2z (statutory analysis begins with text of statute and
relationship to other statutes); Manifold v. Ragaglia,
supra, 272 Conn. 419 (turning to text of related statutory
provisions to ascertain legislative intent when primary
statute at issue was silent). The fact that ‘‘ ‘[m]ental
disability’ ’’ is defined to include ‘‘an individual who has
a record of, or is regarded as having one or more mental
disorders’’; General Statutes § 46a-51 (20); whereas
‘‘ ‘[p]hysically disabled’ ’’ is defined to include only ‘‘any
individual who has any chronic physical handicap, infir-
mity or impairment’’; General Statutes § 46a-51 (15);
indicates that individuals who are regarded as physi-
cally disabled are not protected by the act. As a result,
upon considering the text of § 46a-60 (a) (1) and the
related provisions of § 46a-51 (15) and (20), we agree
with the Appellate Court’s conclusion that ‘‘the text of
§ 46a-60 is clear and unambiguous in that it does not
cover claims of discrimination based on a perceived
physical disability.’’ Desrosiers v. Diageo North
America, Inc., supra, 137 Conn. App. 457.
Although we agree with the Appellate Court’s deter-
mination that the plain text of § 46a-60 (a) (1) does not
protect individuals who are perceived to be physically
disabled from employment discrimination, our analysis
does not end here. The plaintiff contends that even if
the text of § 46a-60 (a) (1) is plain and unambiguous,
this court must consult other sources to ascertain the
legislature’s intent because ‘‘[a]n interpretation that [the
act] excludes perceived disabilities would yield absurd
results, and the legislative history supports the conclu-
sion that Connecticut lawmakers intended [the act] to
cover individuals with perceived disabilities.’’ See Gen-
eral Statutes § 1-2z (meaning of statutes shall be ascer-
tained from text and relationship to other statutes only
if those sources reveal unambiguous meaning that is
not absurd or unworkable); Blasko v. Commissioner
of Revenue Services, 98 Conn. App. 439, 455, 910 A.2d
219 (2006) (turning to extratextual evidence to deter-
mine meaning of statute when plain and unambiguous
language would lead to absurd or unworkable result);
see also Raftopol v. Ramey, 299 Conn. 681, 703–705, 12
A.3d 783 (2011) (turning to extratextual evidence to
determine meaning of statute when language was
ambiguous and proposed interpretation would lead to
bizarre result).
Here, although the language of § 46a-60 (a) (1) is plain
and unambiguous, a literal application of the statutory
language would lead to a bizarre result. Namely, under
the plain language of § 46a-60 (a) (1), if an employee
has a chronic disease, the employer may not discharge
the employee on that basis. If, however, the employee
is undergoing testing that leads his employer to believe
that he has a chronic disease, the literal terms of § 46a-
60 (a) (1) do not protect the employee from discharge
on that basis, despite the fact that the employer’s action,
in both cases, was premised on the same discriminatory
purpose. Similarly, under Diageo’s interpretation of
§ 46a-60 (a) (1), an employee who is discharged because
his employer believes a rumor that he has a chronic
impairment can pursue a cause of action, but only if
the rumor is true and the employee actually has the
chronic impairment. If the rumor is false, and the
employee does not have the impairment, but is merely
believed to have the impairment, the employee has no
recourse, despite the fact that in either case the employ-
er’s action was based on the same discriminatory
motive. That scenario is contrary to the very idea of an
antidiscrimination statute and is inconsistent with the
legislature’s clear statement ‘‘that discrimination based
on a physical disability is prohibited.’’ Ann Howard’s
Apricots Restaurant, Inc. v. Commission on Human
Rights & Opportunities, 237 Conn. 209, 224, 676 A.2d
844 (1996). Because a literal interpretation of § 46a-60
(a) (1) would lead to a bizarre result, we must examine
other sources, including the legislative history of the
act, case law and the decisions of the commission. After
careful review of these sources, we conclude that § 46a-
60 (a) (1) prohibits employers from discriminating
against individuals who are perceived to be physi-
cally disabled.
We start with the legislative history of the act, which
incorporated provisions to protect physically disabled
individuals from employment discrimination in 1973.
Public Acts 1973, No. 73-279, § 14 (P.A. 73-279).
Although this court has not considered the history of
the act with respect to the definition of physically dis-
abled, this court examined the history of the act in
order to determine whether § 46a-60 requires employers
to provide reasonable accommodations to disabled
employees and found that ‘‘the legislative history
reveals a consistent intent to increase protections for
individuals with disabilities.’’ Curry v. Allan S. Good-
man, Inc., supra, 286 Conn. 412. Recognizing that ‘‘the
intent of the legislature [was] to stamp out discrimina-
tion on the basis of physical disability and a wide range
of other disabilities (mental disability, learning disabil-
ity, and mental retardation)’’; id., 412; we concluded
that § 46a-60 requires employers to provide reasonable
accommodations to disabled employees. Id., 415.
With respect to the precise issue of whether the act
protects individuals who are perceived to be physically
disabled, the legislative history indicates that the legis-
lature, consistent with its broad intent to stamp out
discrimination, worked to craft a definition of physi-
cally disabled that would be specific enough to indicate
who was protected by the law, but not so specific as
to exclude individuals who were not enumerated. When
the legislature enacted P.A. 73-279 to ‘‘encourage and
enable the blind and otherwise physically disabled to
participate fully in a social and economic life of the
[s]tate and to engage in remunerative employment,’’ it
did not define physically disabled. 16 S. Proc., Pt. 5,
1973 Sess., p. 2299, remarks of Senator Louise S. Berry.
The following year, when the legislature defined the
term; see Public Acts 1974, No. 74-346 (P.A. 74-346);
Representative Jean T. Thornton explained that the leg-
islature ‘‘did not define . . . physically disabled [in
1973] because we could see there was just no way to
do it and we wanted to cover as many people as possible
under the definition and leave it open and broad. It was
intended to cover any medical condition that would
prohibit a person from being discriminated against, in
other words, that didn’t sound very correct, what I mean
is you could not discriminate against someone if they
were physically disabled or had a medical problem of
any sort in employment. And you can see why we did
not define it last year. It’s because of all the questions
that have come up today. We cannot have a whole
catalogue of every medical ailment in our statutes.’’ 17
H.R. Proc., Pt. 11, 1974 Sess., pp. 5130–31.
The history of P.A. 74-346 documents the legislature’s
determination to define physically disabled7 in a manner
that would not exclude certain groups of individuals.
Before the Senate and the House of Representatives
voted to adopt P.A. 74-346, both chambers amended
the proposed language, which enumerated categories
of individuals who would be considered physically dis-
abled, in order to ‘‘avoid the pitfall of specificity’’ and
to ensure that groups of individuals would not be
excluded on the ground that they had not been listed.
Id., p. 5089, remarks of Representative James J. Ken-
nelly; see also id., p. 5088, remarks of Representative
Thomas M. Kablik (‘‘[i]t would not be a punch list or
an enumeration list which then someone could argue
included all of those that were covered by this bill’’).
Representative James Clynes, seeking clarification of
the amendment, remarked that ‘‘it seems to me that we
have encompassed pretty nearly every type of physical
disability. . . . As I understand the amendment, the
reason we’re changing it is in fear that we have not
included everyone.’’ Id., p. 5125. In 1975, however, the
legislature found it necessary to make the definition
of physically disabled more specific and enacted the
current definition. See Public Acts 1975, No. 75-346
(P.A. 75-346).8 The amendment was necessary because
the legislature had set aside certain housing and had
authorized the use of handicapped license plates and
required ‘‘some means to provide the services for those
that need it. . . . [T]he key to the amendment is the
fact that it does spell out and define very clearly, we
think, the people that will be entitled to the use of the
housing and the license plates.’’ 18 H.R. Proc., Pt. 8,
1975 Sess., p. 3578, remarks of Representative Charles
Matties. In sum, the history of the act details the legisla-
ture’s efforts to balance its determination to be as broad
and inclusive as possible with the need for sufficient
specificity to permit enforcement.
In keeping with this broad legislative intent, the com-
mission, for more than twenty-five years, has interpre-
ted § 46a-60 (a) (1) to protect individuals who are
regarded as physically disabled.9 Faced with this ques-
tion for the first time in 1989, the commission articu-
lated that ‘‘it is not unreasonable to conclude . . . that
[the legislature’s] underlying intent to make the defini-
tion of physically disabled as broad as possible, could
easily encompass protection of persons who are dis-
criminated against because they are perceived to be
disabled.’’ (Internal quotation marks omitted.) Com-
plainant v. Respondent, Commission on Human
Rights & Opportunities, Opinion No. 86-10215 (June 27,
1989). In Complainant, an employee alleged that he
had been discharged because his employer believed
that he had contracted acquired immune deficiency syn-
drome (AIDS). Id. The employee did not contend that
he was suffering from AIDS, but instead alleged that
because his employer knew that he had been exposed
to the AIDS virus and had been tested, he was perceived
by his employer to be disabled by the AIDS virus. Id.
The hearing examiner found compelling evidence that
the employer’s officials ‘‘became disturbed when they
learned that [the employee] went to New York to be
retested for the . . . virus, and fearing that he had the
disease, decided to terminate him immediately.’’ Id.
After concluding that the stated reason for discharging
the employee, absenteeism, was a pretext for discrimi-
nation, the hearing examiner concluded that the
employer had discriminated against the employee in
violation of § 46a-60 (a) (1) by discharging him from
employment on the basis of a perceived physical disabil-
ity. Id.
Since 1989, the commission consistently has interpre-
ted § 46a-60 (a) (1) to protect individuals who are per-
ceived to be physically disabled from employment
discrimination and its reasoning has been articulated
formally in numerous decisions. For example, in Doe
v. Ann Howard’s Apricots Restaurant, Inc., Commis-
sion on Human Rights & Opportunities, Opinion No.
9110357 (September 22, 1993), a commission hearing
officer reiterated that ‘‘it is as much a violation of [§ 46a-
60 (a) (1)] . . . to discriminate against someone
because [he or she] is perceived to have a [physical]
disability, as it is to discriminate against someone
because [he or she] does, in fact, have a disability.’’
Similarly, the hearing officer in Knowles v. Gilman
Bros. Co., Commission on Human Rights & Opportuni-
ties, Opinion No. 9240221 (August 8, 1995), explained
that ‘‘[d]enying claims because the victim of discrimina-
tion was not actually disabled is as offensive as denying
a race-based claim solely because the wrongdoer mis-
takenly thought that the victim was of a particular eth-
nic or racial group. It is the act of discrimination that
these laws are intended to prohibit, regardless of
whether the animus was improperly directed. In any
event, rulings by other [commission] hearing officers
demonstrate that perceived disabilities have been
afforded protection under Connecticut discrimination
laws for many years.’’ In 2000, a commission hearing
officer again articulated that ‘‘to prohibit an employer
from discriminating against an employee due to his
physical disability must necessarily include instances
when the employer mistakenly perceives the individual
to be disabled because in both instances an individual’s
impairment or affliction is falsely presumed to
adversely affect their ability to perform their jobs.
Whether the disability is actual or merely perceived, in
each case the employer makes an assumption about
capability that is unrelated to actual qualifications. In
the employer’s mind, which is the key to a finding of
liability, each case is the same. Therefore, to allow an
employer to escape from liability merely because the
disability he thought he was discriminating against—
fortunately for him or her—is not medically verifiable,
would be to reward the exact behavior the statute was
intended to prohibit. This cannot be the intended result
of . . . § 46a-60 (a) (1).’’ (Emphasis in original.) Scarfo
v. Hamilton Sundstrand, Commission on Human
Rights & Opportunities, Opinion No. 9610577 (Septem-
ber 27, 2000); see also Chily v. Milford Automatics,
Inc., Commission on Human Rights & Opportunities,
Opinion No. 9830459 (October 3, 2000) (employer dis-
criminated against employee by discharging him on
basis of employer’s belief that employee, who had Bell’s
palsy, was seriously impaired, and noting close resem-
blance of symptoms of Bell’s palsy to symptoms of
stroke made it easy to understand why one might per-
ceive employee as suffering from ‘‘major, long-term mal-
ady’’); Walsh v. Soundview Nursing Center,
Commission on Human Rights & Opportunities, Opin-
ion No. 9430024 (January 28, 2000) (individual per-
ceived as physically disabled is protected by act);
Downey v. Waterbury Retirement Board, Commission
on Human Rights & Opportunities, Opinion No. 8930113
(September 28, 1993) (employer discriminated against
employee by refusing to reinstate him on basis of per-
ception that employee was still disabled); Williams v.
Stratford, Commission on Human Rights & Opportuni-
ties, Opinion No. 850296 (August 24, 1990) (employer
discriminated against employee by rejecting him on
basis of physical disability that did not exist).
Not only has the commission clearly articulated its
long-standing interpretation of § 46a-60 (a) (1), but its
interpretation is reasonable. The commission’s conclu-
sion that the act protects individuals who are regarded
as physically disabled is consistent with the legislative
history and purpose of the act and has also been
endorsed by the trial courts. See, e.g., Mills v. Re/Max
Heritage, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-030193581 (March 16, 2005)
(denying motion to strike that asserted that act does
not recognize cause of action for discrimination on
basis of perceived physical disability); Commission on
Human Rights & Opportunities ex rel. Tucker v. Gen-
eral Dynamics Corp., Superior Court, judicial district
of New London, Docket No. 517054 (November 22,
1991) (5 Conn. L. Rptr. 700, 702) (agreeing with rationale
followed in states of Wisconsin and New Jersey that
person perceived as physically disabled is as much
within protected class as person with actual disability).
Moreover, the fact that the legislature has not clari-
fied the definition of physically disabled in response to
the commission’s consistent interpretation of § 46a-60
(a) (1) indicates the legislature’s acquiescence to the
commission’s interpretation. Tuxis Ohr’s Fuel, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 309 Conn. 422–23; see also Hartford v. Hartford
Municipal Employees Assn., 259 Conn. 251, 262 n.14,
788 A.2d 60 (2002) (legislative inaction in response to
long-standing articulation of agency position indicates
acquiescence to agency’s interpretation). For the fore-
going reasons, we conclude that the commission’s inter-
pretation of § 46a-60 (a) (1) is entitled to deference.
We disagree with Diageo’s claim that the commis-
sion’s decisions are inconsistent with the legislative
history, which it contends merely demonstrates that
the legislature intended that the act cover a ‘‘broad
spectrum of physical conditions’’ and offers no guid-
ance with respect to whether the act covers individuals
who are regarded as physically disabled. Although the
legislative history does not address expressly the issue
of whether the act protects individuals who are
regarded as physically disabled, the legislature’s over-
arching intent to ‘‘stamp out discrimination on the basis
of physical disability and a wide range of other disabili-
ties (mental disability, learning disability, and mental
retardation)’’; Curry v. Allan S. Goodman, Inc., supra,286 Conn. 412; coupled with its efforts to be as inclusive
as possible in defining the term physical disability, is
consistent with interpreting § 46a-60 (a) (1) to protect
individuals who are perceived to be physically disabled.
Similarly, we are not persuaded by Diageo’s argument
that the legislature’s failure to amend the definition
of physically disabled to include individuals who are
regarded as physically disabled following the adoption
of the Rehabilitation Act Amendments of 1974, Pub. L.
No. 93-651, § 111, 89 Stat. 2-3,10 and the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
(2012),11 supports the trial court’s conclusion that the
act does not protect individuals who are perceived as
physically disabled. Specifically, Diageo notes that bills
proposed in 1995 and 1999, which included provisions
to expand the definition of physically disabled, were
not reported out of committee. See Senate Bill No. 1157,
1995 Sess.; Raised House Bill No. 6970, 1999 Sess. We
decline to attach significance to a legislative commit-
tee’s inaction because ‘‘in most cases the reasons for
that lack of action remain unexpressed and thus
obscured in the mist of committee inactivity.’’ In re
Valerie D., 223 Conn. 492, 518 n.19, 613 A.2d 748 (1992).
Moreover, we have refused to rely ‘‘on a legislative
committee’s rejection of a proposed bill as evidence of
the intent of the entire General Assembly, which never
voted on or discussed the proposal.’’ (Internal quotation
marks omitted.) State v. Salamon, 287 Conn. 509, 526
n.14, 949 A.2d 1092 (2008).
After considering the intended scope of the term
physically disabled in the context of the legislative his-
tory of the act and the decisions of the commission,
we conclude that § 46a-60 (a) (1) protects individuals
who are regarded as physically disabled from employ-
ment discrimination. To interpret the statute otherwise
would be inconsistent with the legislature’s efforts to
define physically disabled to ‘‘cover as many people as
possible under the definition and leave it open and
broad’’; 17 H.R. Proc., supra, p. 5130, remarks of Repre-
sentative Thornton; and with the legislature’s ‘‘consis-
tent intent to increase protections for individuals with
disabilities.’’ Curry v. Allan S. Goodman, Inc., supra,286 Conn. 412. We decline to interpret § 46a-60 (a) (1)
in a manner that would thwart this purpose. See id. As
a result, we conclude that § 46a-60 (a) (1) prohibits
employers from discriminating against individuals
whom they regard as physically disabled and, therefore,
reverse in part the judgment of the Appellate Court.
Diageo urges us to affirm the judgment of the Appel-
late Court on the alternative ground that even if § 46a-
60 (a) (1) protects individuals who are regarded as
physically disabled from employment discrimination,
‘‘[t]here was no evidence . . . to support [the] plain-
tiff’s claim that [the defendants] discriminated against
her because of a perception that she was physically
disabled.’’ We disagree.
The standards governing our review of the trial
court’s grant of summary judgment apply to our review
of this claim. In the present case, as a procedural matter,
we note that the defendants’ motion for summary judg-
ment and accompanying memorandum of law sought
summary judgment with respect to the claim based on
a perceived physical disability solely on the ground that
Connecticut law does not recognize a cause of action
for such claims. Despite the defendants’ failure to meet
its burden to establish the absence of a material fact
as to whether the defendants perceived the plaintiff to
be physically disabled, the plaintiff’s objection to the
motion for summary judgment noted nonetheless that
‘‘a question of fact exists as to whether the [d]efen-
dant[s] perceived the [p]laintiff to be disabled and alleg-
edly unable to work . . . .’’ In their reply memorandum
in support of the motion for summary judgment and
during argument before the trial court, the defendants
argued simply that ‘‘the plaintiff has offered no evidence
. . . to suggest that . . . Levine thought she was physi-
cally disabled, thought that she had a chronic physical
disability, impairment or infirmity.’’ We disagree.
The amended complaint alleges that the plaintiff’s
employment was terminated on January 5, 2004, one
day after she informed Levine that she needed surgery
regarding a tumor on her right shoulder. The plaintiff’s
affidavit indicates that she missed four weeks of work
in April, 2003, when she underwent stomach surgery,
and that shortly after the surgery, Levine questioned
her need to miss work for a medical appointment when
she had been out of work for four weeks. The affidavit
further indicates the plaintiff’s belief that when she told
Levine that she required surgery to remove a tumor
from her shoulder, he perceived her medical condition
to be worse than it was. Finally, the plaintiff’s affidavit
notes that she had required prior surgery to remove
tumors during her employment with Diageo and that
she had mentioned this to Levine shortly before she
was discharged.
During oral argument before this court, Diageo also
claimed that there was no dispute that it had decided
to terminate the plaintiff’s employment in November,
before the plaintiff had mentioned the need for surgery.
Contrary to Diageo’s assertion, however, the plaintiff’s
complaint contends that the decision to terminate her
employment was made the day after she notified the
defendants of her need for surgery. Moreover, the plain-
tiff responded during oral argument that this issue is
in dispute.
We conclude that the pleadings and affidavits in this
case are sufficient to establish a question of material
fact. As a result, we decline to affirm the judgment of
the Appellate Court on this alternative ground.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to reverse the judgment of the trial court only with
respect to count three of the plaintiff’s complaint and
to remand the case to that court with direction to deny
the defendants’ motion for summary judgment in part
on count three, and for further proceedings according
to law; the judgment is affirmed in all other respects.
In this opinion ROGERS, C. J., and EVELEIGH and
VERTEFEUILLE, Js., concurred.
1
Although the plaintiff also named Colleen Ooten as a defendant, neither
the original complaint nor the amended complaint alleged any conduct for
which Ooten could be individually liable. As a result, the trial court deter-
mined that Ooten was a defendant in name only and the plaintiff did not
challenge this conclusion in her appeal to the Appellate Court or in the
present appeal. Desrosiers v. Diageo North America, Inc., 137 Conn. App.
446, 449 n.2, 49 A.3d 233 (2012). For convenience, we refer to Diageo and
Levine collectively as the defendants.
2
General Statutes § 46a-60 provides in relevant part: ‘‘(a) It shall be a
discriminatory practice in violation of this section:
‘‘(1) For an employer, by the employer or the employer’s agent, except
in the case of a bona fide occupational qualification or need, to refuse to
hire or employ or to bar or to discharge from employment any individual
or to discriminate against such individual in compensation or in terms,
conditions or privileges of employment because of the individual’s race,
color, religious creed, age, sex, gender identity or expression, marital status,
national origin, ancestry, present or past history of mental disability, intellec-
tual disability, learning disability or physical disability, including, but not
limited to, blindness . . . .’’
Section 46a-60 was amended after the plaintiff’s employment was termi-
nated in 2004; see Public Acts 2011, No. 11-55, § 24; Public Acts 2011, No.
11-129, § 20; but those changes are not relevant to this appeal. For conve-
nience, we refer to the current revision of § 46a-60.
3
‘‘[Levine] described this position as ‘the practice of repackaging
[Diageo’s] products for holidays, special occasions, or other promotions.’ ’’
Desrosiers v. Diageo North America, Inc., supra, 137 Conn. App. 449 n.3.
4
‘‘The first count alleged that the plaintiff was discriminated against on
the basis of her race, color and national origin. The second count alleged that
the plaintiff was discriminated against on the basis of her age.’’ Desrosiers v.
Diageo North America, Inc., supra, 137 Conn. App. 450 n.4.
5
In her appeal to the Appellate Court, the plaintiff also alleged that the trial
court improperly had granted in part the defendants’ motion for summary
judgment with respect to the counts alleging negligent misrepresentation
and promissory estoppel. The Appellate Court affirmed the judgment of the
trial court with respect to both claims and the plaintiff does not challenge
that determination in the present appeal. Desrosiers v. Diageo North
America, Inc., supra, 137 Conn. App. 460, 462.
6
General Statutes § 46a-51 provides in relevant part: ‘‘(15) ‘Physically
disabled’ refers to any individual who has any chronic physical handicap,
infirmity or impairment, whether congenital or resulting from bodily injury,
organic processes or changes or from illness, including, but not limited to,
epilepsy, deafness or hearing impairment or reliance on a wheelchair or
other remedial appliance or device . . . .
‘‘(20) ‘Mental disability’ refers to an individual who has a record of, or is
regarded as having one or more mental disorders . . . .’’
7
Public Act 74-346 provides in relevant part that ‘‘[a]n individual is physi-
cally disabled if he has any chronic physical handicap, whether congenital
or resulting from bodily injury, organic processes or changes or from illness
which is unrelated to the ability of such individual to perform a particular
job, or to acquire, maintain or use a public accommodation.’’
8
Pursuant to P.A. 75-346, now codified at General Statutes § 1-1f (b), ‘‘[a]n
individual is physically disabled if he has any chronic physical handicap,
infirmity or impairment, whether congenital or resulting from bodily injury,
organic processes or changes or from illness, including, but not limited to,
epilepsy, deafness or hearing impairment or reliance on a wheelchair or
other remedial appliance or device.’’ Section 1-1f (b) defines physically
disabled for purposes of § 46a-60 and other provisions. This definition of
physically disabled also is codified at § 46a-51 (15).
9
This court has never addressed the issue of whether § 46a-60 (a) (1)
protects individuals who are perceived to be physically disabled. Although
the commission argues that our decision in Ann Howard’s Apricots Restau-
rant, Inc., is instructive, we disagree. In the underlying proceedings in
that case, the commission hearing officer found that the employee had
established that his employer, ‘‘on the basis of its belief or perception that
[the employee] had [acquired immune deficiency syndrome], had discrimi-
nated against [the employee] by failing to reinstate him following his leave
of absence.’’ Ann Howard’s Apricots Restaurant, Inc. v. Commission on
Human Rights & Opportunities, supra, 237 Conn. 224. The issue before this
court, however, was whether the hearing officer had abused her discretion in
failing to strike certain testimony. Id., 228. We did not consider whether an
employee may bring a claim alleging discrimination on the basis of a per-
ceived physical disability.
10
The Rehabilitation Act Amendments of 1974 expanded the definition of
physical disability to include individuals who are regarded as having a
physical disability.
11
Title 42 of the United States Code, § 12102, provides in relevant part:
‘‘(1) Disability
The term ‘disability’ means, with respect to an individual—
‘‘(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
‘‘(B) a record of such an impairment; or
‘‘(C) being regarded as having such an impairment . . . .’’